Your selected location: Perth
30 Nov 2015

Parenting Orders

 

A parenting order is defined in section 64B of the Family Law Act 1975 (“the Act”) and refers to a set of directions made by the Family Court in relation to:

 

a) parental responsibility for a child;

 

b) living arrangements for a child;

 

c) time spent and communication with a child; and

 

d) any other aspect of the care, welfare or development of a child.

 

There are three types of parenting orders:

 

a) interim orders – which apply on a temporary basis until final orders are made;

 

b) final orders – which apply from the end of Trial until the Court says otherwise, or until the child turns 18; and

 

c) consent orders – which can be agreed by the parties and the Family Court at any time, and apply until the Court says otherwise, or until the child turns 18.

 

 

Contravention

 

Parenting orders create legal obligations and are legally binding. Failing to comply with parenting orders has consequences – these consequences are set out in Division 13A of Act. According to section 70NAC of Act, a party contravenes a parenting order if they:

 

a) intentionally fail to comply with the order; or

 

b) make no reasonable attempt to comply with the order.

 

In practice, parents can agree to depart from the terms of a parenting order as necessary. Notwithstanding any such agreement, a parenting order remains in force until a new parenting order changes it. For this reason, any agreement to depart from the orders (even on a “one off” basis) should be recorded in writing. Otherwise, the departure will be construed as a contravention of the orders if one party subsequently seeks to enforce the orders. In those circumstances, the written agreement to depart from the orders will be evidence of an excuse for the contravention.

 

If it becomes impossible or impractical to comply with parenting orders, then one or both parties should seek a variation to the orders as soon as possible.

 

 

Options for Dealing with Contravention

 

If the other party has breached a parenting order, then there are three basic options:

 

a) Do nothing. If the contravention is minor, then it may not be worth pursuing. Alternatively, you can keep records and collect evidence of a number of breaches over time and seek to enforce the orders at a later date.

 

b) Family Dispute Resolution can assist you and the other party to work through a disagreement about a parenting order. Family Dispute Resolution does not change the parenting orders, but it may alleviate the need to take the matter to court. Family Dispute Resolution is less costly than going to court, both financially and emotionally.

 

c) Enforce the orders by a contravention application to the Family Court. This involves filing a Form 2 Application in a Case and an Affidavit. The other party will have an opportunity to file responsive documents before the court hearing.

 

 

Standard of Proof
Before you file a contravention application, you should have detailed evidence of a number of alleged breaches of the parenting orders, including dates of each contravention. Section 70NAF of the Act  prescribes the standard of proof that you must meet:

 

a) In general, you must prove that the other party contravened the parenting orders on the ‘balance of probabilities’. That is, you must show that it is more likely than not that the other party contravened the orders.

 

b) There is a higher standard of proof for the Family Court to consider imposing a prison sentence. You must establish that the other party contravened the parenting orders ‘beyond reasonable doubt’. That is, you must satisfy the court that a reasonable person would not have cause to doubt that the contravention occurred.

 

 

If the contravention has been established, is there a reasonable excuse?

 

If the Family Court finds that the other party has contravened a parenting order, it will consider whether the person had a reasonable excuse for doing so.

 

 

Section 70NAE of the Act provides the following reasonable excuses:

 

c) the party did not understand the obligations imposed by the order; or

 

d) believed on reasonable grounds that the actions were necessary to protect the health and safety of the person (including the Respondent and the child);

 

e) believed on reasonable grounds that not allowing the child and the person to spend time together or communicate together was necessary to protect the health and safety of a person (including the respondent and child).

 

 

What are the penalties?

 

If you do nothing when contraventions occur, then the penalty for the breaching party will similarly be nothing. 

 

 

If you file a Contravention Application, then depending upon the outcome the penalties set out in Division 13A are available to the Court.  In essence, if:

 

a) you make a contravention application to the Family Court;

 

b) the Family Court finds that the other party did contravene the orders; and

 

c) there was no reasonable excuse for the contravention;

 

then the Court will impose a penalty upon the other party in accordance with the penalties set out in the Act.

 

 

The range of penalties available to the Court depend on the nature and seriousness of the contravention – the Court may order the party who is in breach to:

 

a) pay the other party’s legal costs;

 

b) compensate the other party for lost time with a child;

 

c) attend a post-separation parenting program;

 

d) undertake a community service order;

 

e) pay a bond;

 

f) pay a fine;

 

g) face imprisonment; or

 

h) vary the existing parenting orders.

 

 

 

If the other party is in breach of a parenting order and cannot be found, then the Family Court may make a location order under 67J of the Act. This order requires another person or organisation, including government departments; to give any information they have about where the other party may be located.

 

 

If the other party is in breach of a parenting order by failing to return the child as required, then the Family Court may make a recovery order under section 67Q of the Act.  This is an order issued to the Marshal of the Courts and all Federal or State Police to find and return the child.

 

Examples of contravention cases

 

Saldo & Tindall [2013] FamCA 951

 

In the matter of Saldo & Tindall, the Father proved, on the balance of probabilities, that the Mother breached the orders by:

 

a) failing to inform the Father of her contact details in writing;

 

b) failing to deliver the child to the Father on 18 occasions, and stopping the child from spending time with the Father as stipulated in the orders; and

 

c) failing to enrol the child at the designated child contact centre, which stopped the child from spending time with the Father as stipulated in the orders.

 

 

The Mother failed to show a reasonable excuse for her actions.  The Family Court imposed good behaviour bonds on the Mother for each breach, totalling two years. Any breach of the good behaviour bond by the Mother would result in a financial penalty.

 

Carrington & Gunby [2013] FamCA 433

 

In this matter, the Mother ignored a parenting order for the Father to spend time with their five year old child twice a week. The Father filed contravention applications in relation to three breaches. The Court found that the breaches occurred and that the Mother did not provide any reasonable excuse.

 

 

The Family Court imposed a two year good behaviour bond on the Mother that expressly required her to comply with all current and future parenting orders. The Father was awarded “make-up” time with the child.

 

 

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

 

 

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

Supporting Western Australian's for more than 100 years

"Always fast and thorough service. Thank you"

Sitka Pil

My circumstances at the time I made contact with HHG were dire following my argument being rejected by two no win no fee firms. Following my initial meeting with HHG's employment law team I was left feeling extremely positive by the response and concern shown by HHG in regards to their support of my argument along with their preparedness to pursue an outcome on my behalf.

I accept the fact that nobody really wins in these cases (mental health/ workplace) however the end result was what would be considered most favourable and far in excess of what would have been achieved had I not sought the advice from HHG.

I have no hesitation in recommending HHG to anyone caught up in the messy circumstances I found myself in at the time.

Great advice and five-star commitment to their client!!"

Nathan Lynch

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however, Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years.  Business has included drawing up of wills for three generations and preparing of probate for my father in law. I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly, professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first-class service. Their professional advice has been invaluable to our company."

Carolin Grimm - Marine Plant Systems

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group has provided outstanding support as I have taken the journey of buying a business, their professionalism is beyond reproach. Their assistance throughout the Due Diligence process has been invaluable, I would fully recommend them."

Mark Armitage

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker

Select your location:

Please select your nearest office location so we can show you the most relevant information.